HSE has issued a joint statement on safe working with the Confederation of British Industry (CBI) and the Trades Union Congress (TUC).
The statement makes clear that HSE will consider enforcement action for employers not complying with Public Health England (PHE) guidance, including where employers are not enabling social distancing.
However there is a broader point here: risk will often be assessed through the lens of managing risk to an individual. Compliance with PHE guidance – particularly social distancing – relates to managing risk to society as well as the individual. Whilst it is undoubtedly the morally and socially correct approach to comply with PHE guidance, in due course the Courts may be asked to consider in complex scenarios whether it was in fact reasonably practicable for employers to comply with the guidance to manage the risk to their employees. If challenged employers will need to show that their risk assessments took this new hazard into account.
If it comes to the HSE’s attention that employers are not complying with the relevant Public Health England guidance (including enabling social distancing where it is practical to do so), HSE will consider a range of actions ranging from providing specific advice to employers through to issuing enforcement notices, including prohibition notices.